Dinh v Minister for Immigration - [2019] FCCA 1528

FEDERAL CIRCUIT COURT OF AUSTRALIA

DINH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1528

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a Prospective Marriage visa – application for review by sponsor of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant a Prospective Marriage visa because spousal relationship between applicant and sponsoring partner found not to be genuine – information provided to Administrative Appeals Tribunal exceeding what was able to be given to the Delegate and found to be memorised for immigration purposes – applicant sponsor claims that Administrative Appeals Tribunal failed to disclose to the applicant sponsor and the visa applicant that communications between them would be an issue on review before it – no such obligation on Administrative Appeals Tribunal to disclose and in any event such information must have been known to applicant sponsor and visa applicant – no jurisdictional error otherwise established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 360, 424A, 425

Cases cited:

BAZ15 v Minister for Immigration [2018] FCA 230

BYF15 v Minister for Immigration & Border Protection [2016] FCA 774

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration & Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285

SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169

SZOBC v Minister for Immigration & Citizenship (2010) 116 ALD 147

Applicant:

THI THIN DINH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1418 of 2016

Judgment of:

Judge Dowdy

Hearing date:

12 June 2018

Delivered at:

Sydney

Delivered on:

6 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp of Counsel

Solicitors for the Applicant:

Vinh Duong & Associates

Counsel for the First Respondent:

Ms N. Laing of Counsel

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 3 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1418 of 2016

THI THIN DINH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this Court is a female citizen of Australia of Vietnamese ethnicity aged 50 years, having been born on 6 May 1969 (sponsor). She had sponsored the application lodged on 1 August 2014 of Mr Tuan Pham (visa applicant) for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa (Prospective Marriage visa) on the basis that they intended to marry. The visa applicant’s adult son and teenage daughter from his first marriage (which ended in divorce on 23 October 2012) were secondary applicants for the Prospective Marriage visa as members of his family unit.
By Application filed in this Court on 3 June 2016 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1528
Decision Date: 6 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his visa application. The AAT had found that the applicant's knowledge of his sponsor's circumstances was limited and that some of his answers during the hearing appeared to have been memorised, suggesting the information was exchanged to meet immigration requirements rather than reflecting a genuine commitment to the relationship. The applicant contended that the AAT erred in its assessment of his knowledge and the genuineness of his relationship.

The central legal issue before the Federal Court was whether the AAT had complied with its obligations under section 425(1) of the Migration Act 1958 (Cth) and the principles established in *SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs* [2006] HCA 63. Specifically, the court considered whether the AAT had adequately drawn to the applicant's attention any issues it considered to be different from those before the original decision-maker, and whether the applicant had been afforded a proper opportunity to present his case.

The court reasoned that section 425(1) requires the Tribunal to invite an applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. While the applicant is entitled to assume the issues are those considered by the delegate, if the Tribunal identifies different issues, it must bring them to the applicant's attention. However, the provision does not oblige the Tribunal to actively assist the applicant in presenting their case or to prompt elaboration where the applicant chooses not to provide it. The court noted that the Tribunal's concerns about the applicant's knowledge and the memorised nature of some answers were relevant to the assessment of the genuineness of the relationship, which was an issue arising from the decision under review.

The appeal was dismissed. The court found that the AAT had not erred in its application of section 425(1) or the principles from *SZBEL*. The Tribunal's findings regarding the applicant's limited knowledge and the memorised answers were based on evidence presented at the hearing and were relevant to the assessment of the relationship's genuineness, an issue that naturally arose from the visa application. The applicant had been invited to attend the hearing and present his case, and the Tribunal was not obliged to elicit further information beyond what the applicant chose to provide.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The principles established by SZBEL and their application were stated by Griffiths J in BAZ15 v Minister for Immigration [2018] FCA 230 at [20] – [22] as follows:[20] As at the date of the Tribunal’s decision, s 425(1) of the Act provided:425Tribunal must invite applicant to appear(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.[21]This provision was considered in some depth by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. The important principles established in that decision may be summarised as follows:(a)a review applicant is entitled to assume, absent any statement by the review tribunal to the contrary, that the issues on the review are those which the delegate considered to be dispositive (at [35]);(b)if the issues which arise on the review are considered by the review tribunal to be different from those before the delegate, the review tribunal is required to take steps to draw the relevant issues to the review applicant’s attention (at [35]); and(c)it is a matter for the review applicant to establish the claims that are made and it is not useful to speak in terms of “onus of proof”. The Act assumes that issues can be identified as arising in relation to a decision under review and, while those issues may extend to all aspects of a protection visa applicant’s claim, they need not. Significance must attach to the terms of s 425(1) and its reference to the applicant being invited to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [40]).[22]As Ms Laing (who appeared for Minister) submitted, other case law establishes the following relevant principles:(a) s 425 does not impose an obligation on the review tribunal “to ensure that an applicant makes the best of the invitation to attend the hearing” (SZTXE v Minister for Immigration & Border Protection [2015] FCA 493; 232 FCR 433 at [18] per Flick J);(b)the provision does not oblige the review tribunal to “actively assist the applicant in putting his or her case” (Minister for Immigration& Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [36] per Gray, Cooper and Selway JJ);(c)the review tribunal is not obliged by s 425 to carry out an inquiry to identify what the review applicant’s case might be (SZNTO v Minister for Immigration & Citizenship [2010] FCA 183; 114 ALD 129 at [34] per Yates J). It is the review applicant’s responsibility to present whatever evidence or argument in support of his or her case, and the review tribunal must then determine whether that case has been made out (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ); and(d)the review tribunal is not obliged “to prompt and stimulate an elaboration which the applicant chooses not to embark on” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60; 77 ALJR 1909 at [58] per Gummow and Heydon JJ).

Ratio Decidendi

Legal Principle Established

As indicated at [19(g)] above, an issue that concerned the Tribunal was its view that at the Tribunal hearing the visa applicant appeared to have artificially increased his knowledge of the sponsor’s circumstances since the decision of the Delegate, who had found that there were significant gaps in his knowledge of the sponsor’s circumstances. Because it is relevant to the Ground relied upon by Mr Karp of Counsel, who appeared for the sponsor at the hearing in this Court, it is appropriate to set out [14] – [16] of the Decision Record of the Tribunal:[14] The Tribunal notes that according to the primary decision record, at the time of the primary interview the visa applicant's knowledge of the [sponsor’s] circumstances appeared to be quite limited. The review applicant explained to the Tribunal that the visa applicant was nervous and was told to keep his answers short. The Tribunal does not accept that the visa applicant was not given adequate opportunity to present his evidence and that he was told to limit his evidence to the 'yes or no' answers as the review applicant suggests and although the Tribunal is prepared to accept that the visa applicant may have been nervous during the interview, the Tribunal is not satisfied this provides a good reason for his apparent lack of knowledge.[15] Further, in their oral evidence to the Tribunal the couple gave detailed and consistent information about some aspects of the relationship but lacked knowledge about other aspects of each other's lives that the Tribunal would consider to be significant. For example, the review applicant appeared to have little knowledge about the study of the visa applicant's son, claiming they do not discuss it. In the Tribunal’s view, care and support of children (including adult but dependent children) is a significant aspect of a committed relationship and the parties failure to discuss it is of concern to the Tribunal. Similarly, the visa applicant could not recall the review applicant's employment arrangements over the past week while the review applicant was unaware that the visa applicant's divorce took two years to finalise. The Tribunal is mindful of the parties' claim that they communicate frequently and rely on each other for companionship and emotional support. In such circumstances, the Tribunal would expect the parties to have a good knowledge about such matters which are of reasonable importance.[16] The Tribunal has also formed the view that some of the answers given by the visa applicant to the Tribunal were memorised. It appears that, with his inability to answer questions about the review applicant being one of the reasons for the primary refusal of his application, the visa applicant and the review applicant went about exchanging and memorising information that they thought they may be questioned about. The Tribunal is concerned that such exchange of information occurred due to the parties' desire to meet the immigration requirements and not because of their commitment to this relationship.(emphasis added)